No More Bites of the Apple: Probation Revocation and Res Judicata

A community supervision (probation) revocation hearing is distinct from a criminal trial, but are its issues and procedures similar enough to a criminal trial to bind parties in future criminal trials?

That was the question presented the Texas Court of Criminal Appeals in Ex Parte Doan.  Doan was serving community supervision in Brazos County when he was alleged to have committed theft in Travis County.  The Brazos County DA moved to revoke Doan’s community supervision but was unable to obtain sufficient proof.  As a result, the court denied the motion to revoke.  When the Travis County DA later charged Doan with misdemeanor theft, Doan filed a pretrial application for writ of habeas corpus “seeking to bar any further prosecution of the theft offense under the doctrine of issue preclusion.”

The issue in this case is whether the doctrine of res judicata applies to bar a prosecution for a criminal offense in one county after a prosecutor in another county unsuccessfully attempted to revoke the defendant’s community supervision on the ground that he committed the same offense.

In a 6-3 opinion authored by Judge Womack, the CCA noted that probation revocation hearings were often tagged as “administrative” in nature, but wrongly so.

In this case…the issues and procedures were nearly identical in the Travis County (criminal) and Brazos County (revocation) proceedings. In both proceedings, prosecutors plead and sought to prove that the appellant committed the same act. Both were criminal, judicial proceedings with nearly identical procedural rules, in which the State was represented by sworn prosecutors. The Brazos County Attorney had the authority to litigate the matter to a final adjudication. The only difference between the interests of the Brazos County Attorney and the Travis County Attorney in this case is that one sought to prove theft in order to criminally punish the appellant for theft, while the other sought to prove theft in order have the appellant’s criminal punishment from a prior case altered to his detriment.

Judge Womack held that while the difference in procedures is enough to narrowly escape the “grasp of the Double Jeopardy clause,” it is not enough to avoid the application res judicata to the later criminal trial. The CCA reversed the lower court (which previously held that the two prosecuting authorities were not the same party for res judicata purposes).

Sentencing Range and Community Supervision Period Not Linked

The punishment range for a second-degree felony sexual assault is two-twenty years in prison. However, the minimum period of community supervision (i.e. probation) for the same offense is five years. So can a trial court award community supervision if the jury returns a punishment verdict of less than five years? Here’s how this situation played out down in Houston:

A jury found a defendant guilty of the second-degree felony of sexual assault. The jury sentenced the defendant to the minimum punishment (two years) and further recommended community supervision (a recommendation the trial judge is required to take). The trial judge, however, informed the jury that its verdict was illegal because the minimum period of community supervision is five years. The trial court essentially instructed the jury that if it wanted to recommend community supervision, it must sentence the defendant to at least five years (which would then be probated). Following instructions, the jury went back and returned a verdict of five years with a recommendation for community supervision.

Was the trial court correct in his instructions to the jury?

NO, says the Texas Court of Criminal Appeals in Mayes v. State.

There is nothing in Article 42.12 (Tex. Code Crim. Proc.) that states, or even suggests, that the jury must assess a sentence that equals the minimum period of community supervision, the maximum period, or any particular period in between. The jury does not determine the period of community supervision. It assesses the sentence and recommends that the trial judge place the defendant on community supervision. The judge must follow that recommendation, but he has the discretion to determine the appropriate period of supervision, as long as it within the minimum and maximum statutory period.

The CCA opinion makes clear that the statutory minimums for punishment and community supervision are not inextricably linked.

[A] rule that a jury cannot assess the minimum sentence in a case if it also wants the defendant to serve that sentence on community supervision would lead to an absurd result.

Accordingly, the CCA reversed the judgment of the court of appeals.

You Can't Ask That Question

The 2nd District Court of Appeals (Fort Worth) has affirmed that, indeed, there are some questions that cannot be asked a probationer.  In Ex Parte Dangelo, the applicant, who was on probation for pleading guilty to one count of "injury to a child," filed an application for writ of habeas corpus when the trial court incarcerated him after he refused to answer the following questions during a polygraph exam given to him as part of his probation:

1. "Since you have been on probation, have you violated any of its conditions?";
2. "Since you have been on probation, have you had sexual contact with any persons younger than 17?";
3. "Since you have been on probation, have you tried to isolate and child for sexual purposes?"; and
4. "Since you have been on probation, have you intentioanlly committed any sexual crimes?"

The applicant claimed that these questions violated his rights under the Texas and United States Constitutions against self-incrimination. (These types of questions tend to be SOP for probationers - especially sex offenders - in Texas.)

The 2nd Court agreed with the applicant, holding:

the trial court’s broad authority to create community supervision terms does not extend to imposing terms that violate a defendant’s constitutional rights as balanced with the goals of the defendant’s probation.

The Fifth Amendment privilege [against self-incrimination] not only extends to answers that would in themselves support a conviction, “but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute.”

To bolster its conclusion that questions 2-4 were unconstitutional, Justice Livingston's opinion cited the Supreme Court case of Minnesota v. Murphy, 465 U.S. 420 (1984), wherein the High Court reasoned:

A defendant does not lose [Fifth Amendment protection] by reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he makes incriminating statements, if those statements are compelled they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted. . . .

If [a defendant asserts Fifth Amendment rights], he “may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him” in a subsequent criminal proceeding.

Applying the Supreme Court's holding in Murphy to the facts of Dangelo's case, the Court stated:

In summary, we hold that appellant may not be compelled, over the invocation of his Fifth Amendment right, to participate in any portion of the objected-to community supervision conditions, including the general requirement of sex offender counseling and the specific requirement of answering questions two through four of the planned polygraph examination, that would provide a link to his criminal prosecution for any offense unrelated to the injury to a child offense that he pled guilty to.

Pehaps this opinion will spark a change in the probation tactics employed in the various Texas community supervision programs.  At least in the jurisdiction of the 2nd Court, it should, so long as defense attorneys remain aware of what's happening (or probationers are savvy enough to tell someone).

Just Answer the Question, But You Can Lie if You Want

The 11th District Court of Appeals (Eastland) released an opinion yesterday regarding whether the results of polygraph examinations can be used as evidence to revoke community supervision.

Here are some highlights:

This case presents an interesting paradox: courts routinely require sex offenders on community supervision to take and pass polygraph exams - even though their mere existence, let alone results, is inadmissible. But Texas law is clear that the existence and results of a polygraph examination are inadmissible for all purposes.

Unless and until, the Court of Criminal Appeals lifts its ban on polygraph test results, trial courts lack the discretion to revoke an individual's community supervision for failing an exam.

We do not hold that polygraph exams cannot be imposed as a condition of community supervision or used as part of a sex-offender treatment program.  Even though the test results are inadmissible, polygraph exams allow treatment providers to monitor compliance, and they can serve as a catalyst for further investigation.  Nor do we hold that failure to take a test is inadmissible or that trial courts lack the discretion to revoke community supervision for failing or refusing to take a court-ordered polygraph.

So, to summarize the summary, Courts may impose polygraph exams as a condition of community supervision and the inidividual must submit to the exam, but they can completely fail the exam by totally lying throughout and their community supervision cannot be revoked.  That's an interesting loophole.

See the full opinion in Leonard v. State HERE.